Question: How much
do we need to worry about the liability risk of patients committing suicide,
as long we’re not treating them for a psychiatric problem? Can’t we argue that
we had no duty to detect their suicidal tendencies when treating them for something
completely unrelated?

Answer: The liability
risk is actually very high for health care providers providing services other
than psychiatric care, says Robert Hanscom, JD, director of loss prevention
and patient safety with the Risk Management Foundation, the service arm of CRICO
insurance in Cambridge, MA.

"With facilities that deal
with these at-risk patients all the time, they are very alert to the risk and
are careful to take the proper precautions," he says. "Others may have a psychiatrist
on staff and have a psychiatric unit but they still don’t see a lot of these
patients, so they can let their guard down."

Suicides not decreasing

For those health care providers,
the failure usually falls into two categories: They don’t have a sufficient
protocol in place that is known by all the appropriate staff, or they don’t
have the ability to formulate a plan of action when the patient is showing signs
worthy of concern.

"We’ve seen patients commit
suicide who have been in the facility being treated for something completely
different, but they also were despondent and the suicide came as a total shock
to the staff," Hanscom says. "What seems to be missing in those cases is that
the staff didn’t know what to look for in assessing the patient. We point that
out as a major red flag to organizations that don’t normally deal with these
patients. You can let your guard down if this is not a common situation for
you."

He says the number of suicides
in health care settings is relatively small but has held steady for a long time,
with no indication of decreasing. "It’s worrisome because it never seems to
decrease," he says. "They always seem to be there."

But what is the liability
risk? Can you argue that you had no duty to detect the suicidal tendency? Not
necessarily, Hanscom says. If someone is under the care of a physician for something
completely unrelated to depression or a psychiatric condition, the physician
may still be obligated to detect and react to signs of depression.

If no one responds to the
symptoms of depression and the patient commits suicide on the premises or soon
after, "the exposure is pretty great," he says.

"The tendency is to argue
that the physician was not a psychiatrist, and that’s not what the patient was
being treated for," Hanscom says. "Unfortunately though, the doctor does have
a duty to the patient to make a proper assessment of any condition, and they
should have referred that patient on to a psychiatrist."

On the other hand, if there
is no noticeable sign, no reason the doctor should have known a suicide was
possible, those cases can be defended pretty easily when the patient was being
treated for something totally unrelated, Hanscom says.

The risk is even higher
from a facilities perspective. If a patient commits suicide because a door was
left open and they were able to access the roof and jump off, "the institution
is probably liable," Hanscom says. In essence, plaintiffs have to prove that
a physician knew or should have known the patient was at risk of suicide, but
the burden of proof is much lower for the facility. The hospital could liable
for merely allowing circumstances that made the suicide possible.

"The bar is set much lower
for proving facility liability," he says. "Those cases can be massive payouts
if you allowed someone to get into an area where suicide was enabled."

More training in how to
spot suicide would go a long way toward addressing the problem, Hanscom says.
All doctors should be specifically trained, and suicide assessment and prevention
should be built into continuing education for nurses.

"They’re the ones by the
bedside so it is critical that they be aware of the risk and now to asses for
suicidal tendencies in all patients, not just those in for psychiatric problems,"
he says. "Make sure there is a protocol in place for providing assessment. This
must be part of annual staff training."

Premiums still going
up, but slower

Question: What can
we expect to see in the near future with malpractice premiums? Are they still
going up steadily, or can we expect some relief from what we’ve experienced
in the past few years?

Answer: The cost
of insurance isn’t getting better, but it’s not getting worse at quite the astonishing
pace you’ve seen in the past few years, says R. Stephen Trosty, JD, MHA,
CPHRM, director of risk management for American Physicians in East Lansing,
MI.

Trosty says the industry
is slowing the amount of insurance increases and probably will continue to do
so for the next year or more. That may sound like a feeble attempt at good news,
but many risk managers who have seen their insurance premiums soar through the
roof might welcome any hint that the pace is at least slowing.

"We’ve been seeing so many
double-digit increases, even into triple digits for so long," he says. "Hopefully,
we won’t see so many 30%, 40%, and 50% increases. You’re more likely to see
increases in the teens, between 10% and 20%."

The hard market will continue
at least through 2004 and probably into 2005, Trosty predicts. In addition to
smaller increases, he predicts that health care providers will be less likely
to suffer more than one increase in year. Midyear adjustments have been common
in past years since premiums started to spiral up, as if getting a 50% premium
increase wasn’t enough to enough to ruin your bottom line for the year.

Market still making
up losses

The slowing of the increases
is a result of the insurance market regrouping after years in which health care
providers benefited from grossly undervalued products, Trosty says. In the 1990s,
health care providers were getting a sweet deal before insurers realized their
error and started frantically raising premiums to rates that more accurately
reflected their costs. By then, claims severity had shot through the roof and
insurers couldn’t send get the rate increases in the mail fast enough.

Several years of increases
are starting to show some effect, he adds, but there still isn’t enough competition
in the market to cause lower rates.

"The last two or three
years of increases have probably helped bring the rates closer to where they
should be," Trosty says. "But we’re still not seeing more companies coming in
to the market. We’re seeing more captives and risk retention groups in medical
malpractice, but those focus on only a limited number of physicians."

In addition to larger premiums,
he notes that risk managers can expect to see a continuation of fairly strict
underwriting criteria. Bad risks will not be underwritten in the first place
or their carriers will drop them. Facilities and physicians in the riskiest
geographic areas, and those in high-risk specialties or care types, will continue
to pay through the nose for coverage when they are lucky enough to find any.

Nursing homes, for instance,
are still seen as extremely high risk for insurers, Trosty says. Even a physician
who simply has a lot of patients in nursing homes may have trouble finding coverage
at an affordable rate, he says.

Same old problems

Other specialties, such
as obstetrics, radiology, and emergency medicine, still produce frequent lawsuits
with large payouts, so they will prompt the highest premium increases and the
strictest underwriting criteria, Trosty says.

"Many of those specialists
are hospital-based, so the hospital risk manager can get involved and can have
some impact," he says. "Identify what specialties are high risk and what type
of lawsuits are being generated, the most prevalent allegations. Work on those
with physicians and nursing staff, focusing on what can be done to reduce them
with clinical guidelines, protocols, and making sure they are adhered to."

In each specialty, you
will find that there are four or five allegations or case types that are driving
the liability risk, Trosty says. The problems haven’t changed recently, but
the number of million-dollar verdicts has increased.

"Clearly, the risk management
message hasn’t been getting across. Risk managers need to ask how they can more
successfully get their message heard," he says. "When I do seminars, physicians
say they’ve heard this so many times, but I respond that these are still the
areas where we get the most claims. So the message isn’t being taken to heart.
We need to ask why protocols aren’t being followed, why our clinicians aren’t
following best practices."

But what about all the
recent efforts at tort reform and establishing malpractice liability caps? Trosty
says they may have some effect on insurance costs at some point, but not yet.

"It is going to take at
least four or five years before anyone knows whether those are going to be upheld
constitutionally," he says. "Until there is some feeling that the tort reform
caps are going to hold, we’re not going to see it truly having a major impact
on claims and premiums. Insurance companies have an obligation to make sure
they are adequately reserved, so they have to follow a worst case scenario and
assume the caps will not be upheld."

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